Insured Falls into MIG

September 20, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Gomez and Personal

Date of Decision: July 24, 2017
Heard Before: Adjudicator Deborah Anschell

Mrs. Edelina Sampang-Gomez, was injured in a car accident on September 22, 2012  and sought accident benefits from Personal. When the parties were unable to resolve their disputes through mediation Mrs. Sampang-Gomez applied for arbitration at the FSCOd.

The issues in this Hearing are:

1. Do Mrs. Sampang-Gomez’s injuries fall within the MIG?
2. Is Mrs. Sampang-Gomez entitled to payments for the cost of examinations for the             following:
   1. $1,986.00 for a psychological assessment pursuant to Treatment Plan (OCF-18), dated February 22, 2013;
   2. $2,287.92 for psychological treatments pursuant to Treatment Plan (OCF-18), dated June 11, 2013; and
   3. $1,996.00 for a Driver’s Re-Integration Assessment pursuant to Treatment Plan (OCF-18), dated October 29, 2014?

Result:

1. Mrs. Sampang-Gomez’s injuries fall within the MIG.
2. Mrs. Sampang-Gomez is not entitled to payments for the cost of examinations and medical treatment for the following:
   1. $1,986.00 for a psychological assessment pursuant to Treatment Plan (OCF-18), dated February 22, 2013;
   2. $2,287.92 for psychological treatments pursuant to Treatment Plan (OCF-18), dated June 11, 2013; and
   3. $1,996.00 for a Driver’s Re-Integration Assessment pursuant to Treatment Plan (OCF-18), dated October 29, 2014.
3. Personal is entitled to its expenses in respect of the Arbitration.  If the parties are unable to agree on the quantum of the expenses of this matter, the parties may request an appointment for determination of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Dr. A has been Mrs. Sampang-Gomez’s family doctor for almost 17 years.  Mrs. Sampang-Gomez generally sees Dr. A between four and eight times per year.  Prior to the accident, Dr. A primarily saw Mrs. Sampang-Gomez for breast and gynaecological issues.  She suffered from fibrocystic breast disease, as well as fibroids.  Dr. A’s evidence was that he didn’t recall Mrs. Sampang-Gomez having any psychological issues prior to the accident.  Dr. A’s evidence was that Mrs. Sampang-Gomez had pre-accident emotional issues with respect to attempting to become pregnant. 

Mrs. Sampang-Gomez first saw Dr. A in regards to the accident on September 29, 2012.  Her complaints on that date were mild pain at the top of the back, and lower back pain.  Dr. A’s diagnosis was musculoskeletal pain.  There were no symptoms that indicated anything other than soft tissue injuries.  Dr. A completed a Disability Certificate (OCF-3) following that visit.  The Disability Certificate refers to arthritic sprain of the upper and lower back, and sprain of her neck.  In cross-examination, Dr. A advised that at the time he completed the Disability Certificate, there was a very minimal restriction on Mrs. Sampang-Gomez’s ability to carry on a normal life.  He did not feel the need then to refer her for X-rays or to any other experts. On subsequent visits to Dr. A in October 2012, Mrs. Sampang-Gomez reported that her pain was getting better.  She was able to do all of her housekeeping at home.

The first time that she had psychological complaints according to Dr. A was on July 30, 2013.  She then complained of severe fear and nervousness when she gets in a car, specifically if other cars come close.  Her fear was much worse on highways. Her pain continued to be an issue but seemed to improve with time.  Her nervousness seemed to improve over time as well.  Mrs. Sampang-Gomez was referred for physiotherapy.  She informed Dr. A that she was seeing a therapist for her nervousness through the insurance company. Two years post-accident, Mrs. Sampang-Gomez continued to complain of intermittent back pain that slowly improved.  In addition, she had some mild anxiousness and nervousness when driving in a car.

In April 2015, Dr. A sent Mrs. Sampang-Gomez for an X-ray The X-Ray report revealed that the spinal alignment was normal, there were no fractures, the disc space was fine.  The spine was essentially normal, with no structural damage. The last time that Mrs. Sampang-Gomez attended with Dr. A was June 6, 2016.  She was still complaining of nervousness on the highway, but it was much improved.  She had occasional discomfort in her back.  Dr. A testified that the accident made Mrs. Sampang-Gomez slightly more anxious.  She had always been a fairly anxious person.

Dr. P has practiced as a psychologist for 23 years.  She first assessed Mrs. Sampang-Gomez on June 11, 2013.  The pre-screening interview was conducted on February 22, 2013.  In the pre-screening interview, Mrs. Sampang-Gomez explained that after the accident she was not sleeping well, she was in pain, and her functioning had changed.  She was preoccupied with her ability to perform the activities that she had done before the accident.  She was waking up throughout the night because of pain.  She would turn and toss, and pain was disturbing her ability to find a proper sleeping position.  She was stressed and nervous.  She had become nervous in the car as a passenger, and she was afraid of having another accident. Mrs. Sampang-Gomez complained of headaches, pain in her back, and she was attending physiotherapy at the time.

Dr. P completed an OCF-18, dated February 22, 2013, and requested a psychological assessment.  She believed that it was reasonable and necessary because Mrs. Sampang-Gomez exhibited symptoms of anxiety and fear.  They were preventing her from carrying on with her daily activities and with the tasks that she was engaging in before the accident.  Furthermore, if these symptoms were left untreated, then instead of resolving on their own, they would become chronic.

The OCF-18, dated February 22, 2013, was denied by Personal.  Nevertheless, Dr. P proceeded to perform the assessment on June 11, 2013.  Dr. P referred to her assessment report, dated June 11, 2013.  When she met Mrs. Sampang-Gomez for the assessment, Mrs. Sampang-Gomez was still afraid of travelling in vehicles.  That was detracting from plans that she made prior to the accident.  She was tired, she was crying, and nervous.  She was still having issues with sleeping.  She wasn’t participating in activities to the same degree as prior to the accident. Dr. P noted that when the accident first occurred, Mrs. Sampang Gomez experienced persistent back pain.  With the help of physiotherapy and massage therapy treatment, the pain vastly improved within the first month. Dr. Pilowsy administered the Multidimensional Pain Inventory. The answers were confusing and inconsistent, so essentially the test was invalid. Dr. P also administered the Beck Depression Inventory and the Beck Anxiety Inventory which showed a mild range of symptoms. Dr. P’s diagnosis at that time was vehicular anxiety.  In her assessment of June 11, 2013, she provided a GAF score of 60-65, which lies between moderate to mild problems. Mrs. Sampang-Gomez’s mood had improved between the pre-screening interview of February 2013 and the assessment of June 2013.  In her recommendations, Dr. P recommended 12 sessions of treatment, to focus on accident-related anxiety with respect to being a passenger in a vehicle.

Dr. P testified that during the treatment sessions, she discovered other problems that troubled Mrs. Sampang-Gomez.  She felt a deep sense of shame, and she was feeling depressed.  She felt like a failure, and she was losing her faith in God.  She gained about 30 pounds.  Her anxiety had minimally improved.  Her passenger anxiety was a little bit better.

Dr. P also referenced her reassessment report, dated November 20, 2014.  Dr. P’s diagnosis was “somatic symptom disorder, with predominant pain persisted, moderate, with secondary depressive symptoms, and post-traumatic stress disorder symptoms with vehicular anxiety”. Pain was still affecting Mrs. Sampang-Gomez a great deal.  She was experiencing a depressed mood most of the time, with feelings of hopelessness.  She suffered from flashbacks and intrusive thoughts.

For the reassessment, Dr. P again administered the Beck Depression Inventory and the Beck Anxiety Inventory.  Both scores were on the high end of mild, almost moderate.  Dr. P continued to treat Mrs. Sampang-Gomez, even though the Treatment Plan was not approved.

Dr. P referred to the OCF-18 Assessment Treatment Plan, dated October 29, 2014, The purpose of this OCF-18 was to request a Drive Lab Assessment, which includes a certified driver and a vehicle that has a dual brake system.  The goal was to diminish Mrs. Sampang-Gomez’s anxiety while in a car as a passenger. The Drive Lab Report, dated January 21, 2015 noted that her demeanour was tense and her posture was rigid.  When travelling in a vehicle, Mrs. Sampang-Gomez exhibited a pounding heart, tension, perspiration, stomach upset, and felt out of control.  As a result of the Drive Lab Report, Dr. P recommended that she become part of a passenger desensitization program.

Dr. P testified that she believed that in January 2015, Mrs. Sampang-Gomez had been suffering emotionally, and her anxiety was genuine.  Dr. P admitted that she did not examine any medical records pertaining to Mrs. Sampang-Gomez.  All of her diagnoses were based on Mrs. Sampang-Gomez’s clinical presentation, and reporting of symptoms.

Mrs. Sampang-Gomez testified on her own behalf.  She is originally from the Philippines, and has lived in Canada for more than 16 years.  She has a Bachelor of Science in Industrial Engineering, and worked as a nanny and babysitter.  She has also had retail jobs.  At the time of the accident, she was working as a nanny and babysitter.

With respect to the accident, in Brampton, she was a front-seated passenger in a friend’s car.  The vehicle that she was travelling in made a left-hand turn to proceed west, and was struck by a truck proceeding straight through the intersection.  She was travelling with her husband to a birthday party of a friend’s daughter.  After the accident, her friends came to the scene to pick them up. Immediately after the accident, they continued to the birthday party.  The following day, Mrs. Sampang-Gomez and her husband went to Humber River Hospital, where they were checked by a physician. Several weeks after the accident, Mrs. Sampang-Gomez travelled home to the Philippines.  She was there from November 2012 through January 2013. Following the accident, she developed back pain.  She still can’t do any heavy lifting.  She takes Tylenol for her back pain.

Mrs. Sampang-Gomez testified that prior to the accident, she intended to go for driving lessons, but has since lost her motivation.  Her inability to drive has negatively impacted her independence, and her job search.  Neither she nor her husband owns a car.  She has never had a driver’s licence. Her pain continues sporadically, in her right pelvis.  She no longer experiences back pain.

Mrs. Sampang-Gomez testified that after the accident, she was able to participate in all of her pre-accident household responsibilities.  Further, she was able to return to work, perform her regular duties, and work her regular hours.  She also continued to enjoy her social and recreational activities.

Mr. Singer submitted that Mrs. Sampang-Gomez’s injuries fall outside of the Minor Injury Guideline.  Therefore, she is entitled to the cost of examinations and the medical and rehabilitation treatment.  Mr. Singer argued that:

1. Mrs. Sampang-Gomez’s psychological impairments are significant and ongoing such that they fall outside of the Minor Injury Guideline.
2. In accordance with s. 24(1) of the Schedule, the Insurer shall pay the costs of examinations on behalf of the Insured as they are reasonable fees charged by a health practitioner; 
3. Mrs. Sampang-Gomez reported that her psychological treatment helped her, and the only reason she stopped attending was because the Insurer ceased coverage.

Mr. Singer referred to Lo-Papa and Certas where Arbitrator Arbus confirmed that the burden of proof, when assessing whether a claimant’s injuries fall outside of the Minor Injury Guideline, rests with the claimant. Mr. Singer relied on the case D.J. and Aviva where the Applicant was diagnosed with psychological injuries, including depression, anxiety and cognitive impairment.  There, the Tribunal found the injuries to be outside of the Minor Injury Guideline.  Mrs. Sampang-Gomez was diagnosed with similar psychological injuries, including depression and anxiety, which interfere with her daily life.  Therefore, her injuries should also fall outside of the Minor Injury Guideline.

Mr. Singer submitted that Insurers have an ongoing duty to reassess claims as new information becomes available.  Personal was obliged, but failed, to consider Dr. P’s report of November 20, 2014.

An IE ws conduct by Dr. M was retained by Personal to perform an independent medical assessment to determine the applicability of the Minor Injury Guideline, and also to evaluate and determine whether a particular Treatment Plan was reasonable and necessary.  Dr. M assessed Mrs. Sampang-Gomez on November 19, 2015. Dr. M observed that Mrs. Sampang-Gomez had a full range of motion in her neck in all directions.  However, she did report some neck pain.  She had a full range of shoulder motion.  Mrs. Sampang-Gomez also had a full lumbar range of motion. Dr. M concluded that Mrs. Sampang-Gomez sustained soft tissue muscular ligamentous injuries.  Her neurological examination was normal.  Dr. M’s opinion was that based on the history, physical examination and review of the medical documentation, Mrs. Sampang-Gomez’s injuries fell within the Minor Injury Guideline.

Dr. H then reviewed the case for Personal. Dr. H was asked to comment on a further Treatment Plan, Dr. P’s Reassessment Report, dated November 20, 2014.  From a review of Dr. P’s two reports, Dr. H didn’t see anything that would warrant treatment.  Furthermore, Dr. H didn’t see documentation to support any psychiatric illness in Dr. A’s clinical notes and records. With respect to the Drive Lab Report, dated January 21, 2015, Dr. H indicated that it was consistent with Mrs. Sampang-Gomez’s anxiety as a passenger.  However, her anxiety was not to the degree or extent of a psychiatric illness.  It didn’t require treatment. Dr. H concluded that Mrs. Sampang-Gomez did not have a psychiatric illness or diagnosis.  Therefore, he held the view that any of her subjective emotional complaints would be captured by the Minor Injury Guideline.  He was of the view that the Treatment Plans submitted by Dr. P were not reasonable and necessary.  Further, his view was that any symptoms suffered by Mrs. Sampang-Gomez would dissipate with no further treatment.

Personal submitted that the Treatment Plans submitted by Mrs. Sampang-Gomez were not reasonable and necessary.  Furthermore, Mrs. Sampang-Gomez led no evidence that she sustained an injury that is that is not predominantly a “minor injury” as defined in s. 3(1) of the Schedule.  She did not allege that she had a pre-existing medical condition that would have prevented her from achieving maximal recovery if she was subject to the Minor Injury Guideline.

Mr. Murray noted that pursuant to the Schedule, an Insurer is required to pay for “reasonable and necessary” medical expenses incurred by an Insured and “reasonable fees” for the conduct of an assessment. Pursuant to s. 18(1) of the Schedule, an Insurer is not required to pay more than $3,500.00 “in respect of an insured person who sustains an impairment that is predominantly a minor injury”.  Section 3(1) of the Schedule defines a “Minor Injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae”.

The Arbitrator reviewed the evidence and the law.  The issue in this Hearing is whether or not Mrs. Sampang-Gomez’s injuries sustained in the accident come within the Minor Injury Guideline.  If they do, then it follows that the three Treatment Plans in dispute are not payable by Personal.

The Arbitrator found that Mrs. Sampang-Gomez has not met her burden of proof. Accordingly, Mrs. Sampang-Gomez is subject to the Minor Injury Guideline cap of $3500.00, which has already been paid.  Therefore, the Treatment Plans in dispute are not payable.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.